Jurisdiction of criminal court and Transfer of criminal case , Section 179 and 406 of Criminal Procedure Code

Jurisdiction of criminal court and Transfer of criminal case

Recently, in the supreme court a petition was filed to transfer the case from Bihar to Mumbai  by Riya Chakravarthy in a matter of FIR lodged in Bihar by Father of late Sushant Singh Rajput

It is the preliminary fight of Jurisdiction, so as per section 179 of the Criminal Procedure Code, Bihar has Jurisdiction to trial under Section 380, 382, 406 and 420 of Indian Panel Code.

Jurisdiction of criminal court and Transfer of criminal case are different,  It is here explained in simple English about the power of the Supreme Court to transfer the Case.

About Transfer of Criminal Case under section 406 of the Criminal Procedure Code 1973

Section 406 of Criminal Procedure Act tells about transfer case from the high court to another or from one subordinate court of high court to another subordinate court of the high court, only those case or appeal can be transferred which is required for the purpose of proper justice,  Only case or appeal can be transferred not any investigation   

According to this section, if necessary in the interest of justice, at various levels, the court has made arrangements for transfer of pending cases before its subordinate courts.

There is no universal or hard and fast rule can be prescribed for deciding a transfer petition which has always to be decided on the basis of the fact of each case.

Under this section, the Supreme Court will transfer a case if there is a reasonable apprehension on the part of a party to a case that justice will not be done A petitioner isn't required to demonstrate that justice will inevitably fail. he's entitled to a transfer if he shows circumstances from which it is often inferred that he entertains a fear which it's reasonable within the circumstances alleged. But a mere allegation of apprehension doesn't suffice;

Grounds of transfer of Case

There is no universal or hard and fast rule can be prescribed for deciding a transfer petition which has always to be decided on the basis of the fact of each case.

There is no substance in claim of accused for transfer of case on ground that Sessions Judge was biased as he didn't allow accused to take a sit during trial

the solitary ground for transferring the case is that safety of the complainant would be in jeopardy if the case is not transferred is a nebulous base for transferring the case and hence transfer cannot be granted. 

under section 406 of the code,  the supreme court will transfer a case if there is a reasonable apprehension on the part of a party to a case that justice will not be done.

The apprehension of not getting fair and impartial inquiry or trial is required to be reasonable and not imaginary,  based upon conjectures and surmises

The convenience of the parties including the witness to be produced at the trial is additionally a relevant consideration for deciding the transfer petition.

The convenience of the party doesn't necessarily mean the convenience of the alone who approached the court on misconceived notions convenience for the aim of transfer means the convenience of prosecution, other accused, the witness and therefore the large interest of the society

Procedure for transfer of Case or Appeal

According to section 406(2), Supreme court may order to transfer of case or appeal from one high court to another or one subordinate court of high court to another subordinate court of high court, only on the application of Attorney-General of India or advocate General of India or party interested.

When an application is given through on behalf party then an affidavit or affirmation is required but such affidavit or affirmation is not required when the application filed by Advocate General of India or Attorney General of India

Important Case Law

Ramchander Singh  vs State of Tamilnadu 1978 SCC 35,

In this case Supreme Court held that, if the case is in stage of an investigation, there is no power to transfer this during an investigation

Asha Ranjan v State of Bihar, Writ Petition (Criminal) No. 132/2016 as decided on 15th February 2017 by the Supreme Court.

Exercising its extraordinary power under Article 142 of the Constitution, the Supreme Court transferred notable gangster and criminal Mohd. Shahabuddin from Bihar to Tihar Jail, Delhi, and ordered all his pending trials shall be conducted by video conferencing by the concerned trial court.

 

Kaushalya Devi v Mool Raj, (1964) 1 Cr LJ 233 : (1964) 4 SCR 884 .

Where, however, a Magistrate in whose Court the case of which transfer is sought is pending makes an affidavit on behalf of the administration and puts in a strong plea opposing the transfer, it is expedient for the ends of justice without considering the merits of the contentions raised by the petitioner to transfer the case. Because in such a case all essential attributes of a fair and impartial criminal trial are put in jeopardy.

Inder Singh v Kartar Singh, AIR 1979 SC 1720 : 1979 Cr LJ NOC 201 : (1979) 4 SCC 192 .

Where the petitioner was poor and the complainant the only witness to be examined, transfer of the case from Cuttack to Chandigarh was ordered.

 

Ranjit Singh v Popat Rambhaji Sonavane, 1983 Cr LJ 436 : AIR 1983 SC 291 (1983) 1 SCC 390.

The Supreme Court allowed a transfer application where the circumstances brought on record showed every likelihood of physical harm being caused to the petitioner.

AKK Nambiar v Desraj (DS.P), AIR 197 3 SC 203 : 1973 Cr LJ 270 : (1973) 3 SCC 873

Vague apprehension that the accused might transfer the witnesses of the prosecution were not sufficient to oppose the transfer.

In Captain Amarinder Singh v Parkash Singh Badal, (2009) 6 SCC 260 : JT 2009 (7) SC 187: 2009

while handling an application for transfer petition preferred under section 406 CrPC, a three-Judge Bench has opined that for transfer of a criminal case, there must be a  reasonable cause to apprehend on a part of the party to a case that justice won't be done. it's also been observed therein that mere an allegation that there's a fear that justice won't be wiped out a given case alone doesn't suffice. it's also required on the a part of the Court to ascertain whether the apprehension alleged is genuine reasonable  or not, for the apprehension must not only be entertained but must appear to the Court to be a cause for reasonable  apprehension

Gurcharan Das v State of Rajasthan, AIR 1966 SC 1418 : 1966 Cr LJ 1071 .

The Supreme Court can, in the exercise of its jurisdiction and power under this section, transfer a case from a Special Judge subordinate to one High Court to another Special Judge subordinate to another High Court. The provisions of section 7(1) of the Criminal Law Amendment Act, 1952, do not stand in the way of such a transfer.

State v VC Shukla, 1980 Cr LJ 965 : AIR 1980 SC 1382 : (1980) Supp SCC 249

It was held that section 7 of the Special Courts Act, 1979 [now repealed], by providing for automatic transfer of cases from High Court to the Supreme Court did not take away the Supreme Court's power under section 406 of the Code. There was no inconsistency between the two provisions. Section 7 of the Special Courts Act, 1979 was a legislative decision, whereas a decision under section 406 had to be a judicial decision.

 

LS Raju v State of Mysore, AIR 1953 SC 435 : 1953 Cr LJ 1833 .

It was held by the Supreme Court that for any sound and reputable system of administration, justice should appear to be done as that it is in fact done. Thus, where an accused appeals from his conviction for an attempt to murder the Chief Justice of a State High Court and applies for transfer of his appeal to some other High Court on the ground that he will not have fair and impartial hearing of appeal in the State High Court which is presided over by the complainant, it is a fit case for transfer.

Avtar Singh v State of MP, 1982 Cr LJ 1740 : AIR 1982 SC 1260 : (1982) 1 SCC 438 .

Where the transfer of a case from Court of Session was sought on the ground that the Judge did not allow the accused to sit down during the trial, the Court held that there was no substance in the allegation of unfairness or impartiality, and therefore the transfer application could not be granted.

Inder Singh v Kartar Singh, 1979 Cr LJ NOC 201 : AIR 1979 SC 1720 : (1979) 4 SCC 192 .

Transfer may be ordered on the ground of poverty of the petitioner.

Maneka Sanjay Gandhi v Rani Jethmalani, 1979 Cr LJ 458 : AIR 1979 SC 468 : (1979) 4 SCC 167 .  

Assurance of fair trial is the first imperative of the dispensation of justice, and the Court has to consider not the relative convenience of a party but something more substantial and impending which necessitates the Court to exercise the power of transfer. It was observed by the Supreme Court that the complainant had a right to choose the forum and the accused could not dictate where the case should be tried.

Ram Chander Singh Sagar v State of TN, 1978 Cr LJ 640 : AIR 1978 SC 475 : (1978) 2 SCC 35

Section 406 contemplates the transfer of cases but not a transfer of investigation from one police station to another. If the accused is directed to appear in a far-off Court during the investigatory stage, he may move the Court for the appropriate order


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